B. GHOSH, J.

(1) THE instant appeal is against the judgment and order of the learned single Judge dated 11th January, 1999 passed in W. P. No. 21138 (W) of 1999 whereby and under the learned single Judge directed the Director of School Education to give the petitioner higher scale of pay as per improvement of his educational qualification from April, 1996 within a period of two weeks.

(2) IN the writ petition the petitioner contended that in 1985 he was appointed as an Assistant Teacher of the School in question in Social Science Group. He stated that a that time he was a B. A. (English, Economics and Political Science) and B. Ed. (Geography and Bengali). It is the further case of the petitioner that he obtained M. A. Degree in Political Science subsequent to his joining the School in question as an Assistant Teacher. It is the case of the petitioner that he made several representations to the concerned District Inspector of School (SE) for granting him higher scale of pay on the basis of a Governments decision dated 31st July, 1981 but they were of no avail. It is the further case of the petitioner that he thereupon made prayer to the Director of School Education, West Bengal, who has rejected the prayer of the petitioner and accordingly the petitioner filed a writ petition which was disposed of by permitting the petitioner to make a substantive application with a direction to consider and decide such application. It is the case of the petitioner that he made an application in terms of the said order of this Court but the same was once again rejected by the Director of School Education by an order passed in March, 1991. It is next contended by the petitioner that on 10th September, 1991 the Policy regarding payment of higher scale of pay for more qualified persons was altered. On the basis thereof the matter was processed and full recommendations were made by them to the District Inspector of Schools (SE) but the concerned District Inspector of Schools (SE) failed and neglected to implement the said altered policy of the Government in relation to the petitioner. It is then contended in the petition that on 27th January, 1995 clear guidance has been given by the Government for payment of higher scale of pay to more qualified teachers and according to such guidelines the petitioners services have been utilised but he had not been given the benefit of such higher scale of pay. The petitioner thus moved yet another writ petition when this Court directed the consideration of the representation of the petitioner. Upon such consideration the Director of School Education passed an order dated 12th October, 1998 and thereby rejected the claim of the petitioner and accordingly he filed a writ petition upon which the impugned order has been passed.

(3) THE entire arguments of the writ petitioner/respondents herein before the learned single Judge was founded on the Circular dated 17th January, 1995. It would, therefore, be proper to reproduce the same and accordingly we de reproduce the same hereafter.

"government OF WEST BENGAL education (SCHOOL) DEPARTMENT secondary Branch bikash Bhavan, Salt Lake, Cal-91 no. 57-SE (S)Dated, Calcutta, 27th Jan95. From : Shri P. Bhattacharyya, asst. Secretary of the Govt. of West Bengal. To : The Director of School Education, West Bengal. Sub. : granting of Pay according to qualification to the Assistant Teachers of Non-Government Secondary School. The undersigned is directed to say that the question of granting higher scales of pay according to qualification to the Assistant teachers of Non-Government Jr. High Schools/jr. High Madrasahs and High Schools/high Madrasha (including Higher Secondary Schools/higher Secondary Madrasahs) in this State who have obtained higher qualification in subjects not relevant to their respective subject or group in which they were appointed in the schools but relevant to their respective teaching subject had been under consideration of the State Government for sometime past. Such a situation exists in some secondary schools where, in the academic interest of the students the authorities of the schools have allotted classes on particular subjects to some approved teachers of the schools who were, respectively, appointed for a different subject/group as per available vacancies. The Education Department also is not in a position always to sanction the required number of additional posts to the schools owing to financial stringencies. Considering the prevailing situation in the Secondary Schools in this State as mentioned above, the State Government in the Education Department has decided as follows to cope with the said situation and in the academic interest of the schools :- (i)Approved Assistant Teachers of Non-Government Secondary Schools and Madrasahs who will take classes in subjects relevant to their respective higher qualification, though appointed/approved respectively in a different group/subject other than the aforesaid teaching subject shall, henceforth, be allowed to draw pay according to their respective higher qualification, as prescribed by the State Government, provided such Assistant Teachers take individual at least six periods per week as officially allotted by the authorities of the respective schools to such Assistant Teachers within the normal workload upon the written consent of the concerned teacher and with the prior permission of the concerned District Inspector of Schools and strictly according to the actual academic need of the individual school. If there be more than one Assistant Teacher in a school with relevant higher qualification agreeable to this arrangements, preference shall be in order of seniority. If any school has already effected such an arrangement in its academic interest, the same has to be got approved by the concerned D. I. of Schools, subject to eligibility, for the purpose of drawal of qualification pay by the concerned teachers. (ii)In future, when any clear vacancy of Assistant Teacher occurs in the normal section (Class V to Class X) in a non-Government Secondary School/madrasah, the authorities of the concerned school may apply to the concerned D. I. of schools for filing up the vacancy by an existing approved Assistant Teacher of the normal section of that institution who has applied to the school authorities in writing for being placed in that post and who has the requisite higher qualification for that vacant post but is not drawing pay according to such higher qualification by reason of his/her appointment/approval in a different group. The concerned D. I. of schools may permit the schools Authorities to place the services of such Assistant Teacher in that post, with effect from a certain date to be indicated by the D. I. of schools, if the concerned District Inspector of Schools is satisfied that the arrangement will be beneficial to the students. The Assistant Teacher so transferred to the vacant post will be entitled to draw pay according to his/her higher qualification as prescribed by the State Government from the date of his/her placement in that vacant post. The concerned Assistant Teacher shall have to take classes from that date as allotted to that new post. In that case the resultant vacancy shall be filled up according to existing rules. It there be more than one eligible applicant Assist. Teachers in a School for one such vacant post, preference shall be in order of seniority. No further approval of appointment will be necessary. The aforenoted decisions have been taken in conformity with the concurrence of the Finance Department vide their U/o No. 648 Group j dated 7. 3. 1990. All concerned may please be informed accordingly. The G. O. No. 22-SE (SECY.) dt. 6. 1. 95 is hereby cancelled. Sd/- P. Bhattacharyya Assistant Secretary. "

(4) IN this State the aided schools recognised under the West Bengal Board of Secondary Education Act, 1963 do get in the form of grant-in-aid from the State the salaries of all Assistant Teachers appointed by such schools. In 1981 the State Government thought that such Assistant Teachers may be granted higher scale of pay provided they have acquired higher qualification. If the Assistant Teachers have acquired higher qualification relevant to the subjects they have been appointed to teach, then there is no difficulty at all. The difficulty arises if an Assistant Teacher acquired higher qualification not relevant to the subjects he has been appointed to teach. In such circumstances although he has acquired a higher qualification but there is no scope to use utilise such higher qualification for the benefit of the beneficiaries of the grant-in-aid, i. e. the students of the school. The Government, thus, in 1981 itself decided that in future teachers will be allowed higher Pay on qualification basis only when they obtained such higher qualification for the subject relevant to his teaching. The petitioner having joined the services in 1985 and he having not acquired higher qualification relevant to his teaching subject, he was not entitled to any higher scale of pay.

(5) ON 10th September, 1991 the Government amended its earlier decision of 1981 in relation to those assistant teachers who were already in service in 1981. The effect of this amendment was that the school teachers who were appointed with higher qualification in subjects not relevant to their teaching or who improved their qualifications subsequent to their appointment in subjects not relevant in their teaching, shall be allowed the higher scale of pay on qualification basis with effect from 1st April, 1981 or after 5 years of teaching counting from the date on which higher qualification was obtained, which-ever is latter. It is to be kept in mind that while this amendment was effected the provisions of 1981 decision that in future Secondary School teachers will be allowed higher pay scale on qualification basis only when they obtain such higher qualification in the subject relevant to their teaching/appointment was not deleted. Therefore, the amendment did not at all improve the right of the petitioner in any manner whatsoever.

(6) IN 1995 it appeared to the Government that in many schools where adequate teachers have not been appointed for some reasons or the other but in order to take care of the needs of the students of the school, services of the teachers had to be obtained for teaching subjects different than the subjects for which they were appointed. Such persons as appears from the 1995 Circular, decided the Government, should not be deprived of higher scale of pay if they have acquired higher qualification and accordingly laid down the entire scheme of granting of such higher pay scale.

(7) A bare reading of the 1995 Circular would make it crystal clear that the services of the Assistant Teachers having higher qualification for teaching a different subject is an absolute necessity. Merely because the school has asked the teacher to take certain classes, would not do. Prior permission of the District Inspector of School (SE), in case such services are contemplated in future, and approval, in case such services have already been taken, is also a mandatory requirement. This prior permission or approval can be granted by the concerned District Inspector of School (SE) upon making a proper investigation as to whether engagement of an Assistant Teacher to teach a subject different than the teaching subject for which he was appointed, is a necessity or not. The beneficiary of the Government grant-in-aid being the students of the school, the Government wanted to see whether those beneficiaries are really benefited by the higher qualification of the concerned teacher and accordingly directed that such services by the concerned teacher must have nexus with the actual academic need of the school.

(8) IN the instant case the District Inspector of School (SE) did not grant any such approval. In terms of an order of this Court the matter was thrashed out before the Director of School Education. Before the Director of School Education, it was pointed out by the District Inspector of School (SE) that the petitioner is taking classes in Civics and Economics as additional subjects in Classes IX and X and therefore he is not entitled to get post-graduate scale of pay. What was meant is that even assuming classes in Civics and Economics, as additional subjects in Classes IX and X, are required to be taken to benefit the students of those classes and assuming the petitioner is taking those classes, he is not entitled to any higher pay as he has not acquired any higher qualification either in Civics or in Economics but in Political Sciences. This assertion is based on the findings reflected in the order of the Director of School Education passed in 1991 in relation to the petitioner, when it was held that Political Science is not one of the subjects taught in the Secondary Level.

(9) IN those circumstances we have no other option but to held that the petitioner having acquired higher qualification in Political Science and Political Science being not one of the subjects taught in a Secondary School, the petitioner was not, nor is at all entitled to any higher scale of pay whether he had taken or is taking six classes in Civics and Economics.

(10) BEFORE, however, parting with the matter we felt it to be necessary to state that the advantage of the 1995 decision of the Government can be taken by the School Management alone and by no-one else. In the event it wants to take such advantage it would have to obtain consent of the concerned teacher who would be burdened with the duty to teach subjects other than the subjects he was appointed to teach. The teacher may or may not give his consent. If the teacher gives consent and if he has acquired a higher qualification in the subject which he has been requested to take in addition to the subjects for which he had been appointed, and if he starts taking six classes per week in such additional subject then it shall be the obligation of the management of the school to immediately seek permission or approval of the concerned District Inspector of School (SE), as the case may be, who, in turn, shall either grant or not grant such consent having regard to the actual academic need of the school and in the event the concerned District Inspector of School (SE) refuses to grant such permission or approval it shall be open to the concerned teacher to stop taking such classes and if the action of the District Inspector of School (SE) is to be challenged, the same may be challenged only by the Managing Committee of the School and not by the teacher concerned. For the reasons aforesaid, we have no other option but to set aside the order under appeal and to dismiss the writ petition which we accordingly do without, however, any order as to cost. A. K. Mathur, J.-I agree. Appeal allowed